"General words are always construed so as to give effect to, and not so as to destroy, the expressed intentions of those who use them. Good illustrations of this principle will be found in Payler v. Homersham (1815), 4 M. & S. 423, and Lindo v. Lindo (1839), 1 Beav. 496."-In re Perkins, [1898] 2 Ch. 182, at p. 190; 67 L. J. Ch. 454, at p. 458, Lindley, M. R., delivering the judgment of the Court (Lindley, M. R., Rigby and Collins, L. JJ.). (See also ante, p. 63, and post, p. 311, Statutes.)

Exceptions.

"His lordship [Lord Kenyon, C. J.] then observed, that the general mode of construing deeds to which there are exceptions, is to let the exception control the instrument as far as the words of it extend and no further; and then upon the case being taken out of the letter of the exception, the deed operates in full force." -Bowring v. Elmslie (1790), 7 T. R. 216, note (a).

"It is a rule of construction, that where there is a grant and an exception out of it, the words of the exception are to be considered as the words of the grantor, and to be construed in favour of the grantee."-Bullen v. Denning (1826), 5 B. & C. 842, at p. 850, Holroyd, J.

"It is a settled rule of construction that, where there is a grant and an exception out of it, the exception is to be taken as inserted for the benefit of the grantor, and to be construed in favour of the grantee. (See Sheppard's Touchstone, 7th ed. (1820), p. 100; Cardigan (Earl) v. Armitage (1823), 2 B. & C. 197, and Bullen v. Denning (1826), 5 B. & C. 842; 4 L. J. (O. S.) K. B. 314.) If, then, the grant be clear, but the exception be so framed as to be bad for uncertainty, it appears to us that, on this principle the grant is operative and the exception fails."-Savill Brothers, Ltd. v. Bethell, [1902] 2 Ch. 523, at pp. 537, 538; 71 L. J. Ch. 652, at pp. 657, 658, Stirling, L. J., delivering the judgment of the Court (Collins, M. R., Stirling and Cozens-Hardy, L. JJ.).

Transposing Words.

"It has been truly said, in some of the cases, that the construction of a deed does not depend on the order of the covenants, or upon the precise terms of them; but that regard must be had to the object and whole scope of the instrument."-Richards v.

Bluck (1848), 6 C. B. 437, at p. 441; 18 L. J. C. P. 15, at p. 17, Wilde, C. J.

Changing Words.

“Here, therefore, in order to give effect to the intention of the surrenderor, we must say that when he used the word or he meant and. And there is no case in which any difference has been made, as to this point, between a will and a deed, when the Court are considering how the intention of the parties can be effected.". Wright v. Kemp (1789), 3 T. R. 470, at p. 473, Lord Kenyon, C. J.

Operative Part and Recitals.

When the operative part of a deed is clear it cannot be controlled by the recitals or other parts of the deed.

When the operative part of a deed is ambiguous, or goes beyond
the recitals, it may be controlled by the recitals and other
parts of the deed.

When the words of the operative part of a deed are general, they
may
be controlled by the recitals or other parts of the deed.
If both the recitals and the operative part are clear, but they are
inconsistent with each other, the operative part is preferred.

"The reciting part of a deed is not at all a necessary part either in law or equity. It may be made use of to explain a doubt of the intention and meaning of the parties, but it hath no effect or operation."-Bath and Montague's Case (1693), Cas. Ch. 3rd ed. 55, at p. 101, Holt, C. J.

"If the operative part of a deed be doubtfully expressed, there the recital may safely be referred to as a key to the intention of the parties; but where the operative part of the deed uses language which admits of no doubt, it cannot be controlled by the recital." -Bailey v. Lloyd (1829), 5 Russ. 330, at p. 344, Sir John Leach, M. R.

"When the words in the operative part of a deed of conveyance are clear and unambiguous, they cannot be controlled by the recitals or other parts of the deed. On the other hand, when those words. are of doubtful meaning, the recitals and other parts of the deed may be used as a test to discover the intention of the parties, and to fix the true meaning of those words."-Walsh v. Trevanion

(1850), 15 Q. B. 733, at p. 751; 19 L. J. Q. B. 458, at p. 462, Patteson, J., delivering the judgment of the Court.

"It is true that the Courts have held-and the authorities are very numerous on this subject, I will just state their result, they may be found in almost every text-book on conveyancing-that you cannot control clear words of conveyance by words of recital. That is one canon undoubtedly. But the expression clear words of conveyance' is subject to interpretation. For instance, the doctrine is as applicable to releases as to anything else, and the exception will be found to be always, that general words are not within that description of clear words of conveyance which cannot be controlled by the recital."-Rooke v. Lord Kensington (1856), 2 K. & J. 753, at p. 769; 25 L. J. Ch. 795, at p. 799, Sir W. Page Wood, V.-C.

"I do not dispute the proposition which was argued, that if you find in a settlement recitals indicating various parcels enumerated, from whence it is to be inferred, from reading the recitals alone, that these parcels, and these alone, are to be included in and made subject to the provisions of the deed, but yet you find that in the operative part of the deed one or two of these parcels are omitted, the Court may be of opinion, upon the construction of the deed, that the parcels, which are omitted in the operative part, are omitted by mistake, and are not included in the provisions of the deed. And the converse of that proposition is also true; parcels may be included in the operative part of the deed which the recitals and the rest of the deed show to have been inserted there by mistake. There are several cases to that effect, and amongst them the well-known case, before Lord Mansfield, of Moore v. Magrath [(1774), 1 Cowper, 9].”—Barratt v. Wyatt (1862), 30 Beav. 442, at p. 443, Sir J. Romilly, M. R.

"It was argued, that the covenant ought to be limited by the recital, and it certainly ought, if there were any ambiguity about it."-Selby v. Crystal Palace Gas Co. (1862), 30 Beav. 606, at p. 612, Sir J. Romilly, M. R.

"It is of the greatest consequence to keep distinct the different. parts of deeds, and to give to recitals and to the operative part their proper effects. I have always held, that where the recitals and the operative part of a deed are at variance, the operative part must be officious, and the recitals inofficious. I do not say inoperative, for the recitals may be useful in explaining ambiguities, but I cannot give to them such effect as to introduce a new covenant into the

deed."--Young v. Smith (1865), L. R. 1 Eq. 180, at p. 183; 35 Beav. 87, at p. 90, Sir J. Romilly, M. R.

"I had to consider the whole of this subject in the case of Rooke v. Lord Kensington [(1856), 2 K. & J. 753; 25 L. J. Ch. 795], and I am quite satisfied, after having heard the able argument of Mr. Turner, even upon the authorities he has cited, that, where there is a manifest discrepancy between the recital and the conveyance, the recital being clear as to what was intended to be conveyed, and the conveyance going beyond the recital, the conveyance will have to be restricted. No doubt that rule has more frequently been held to apply to the case of releases than of any other deed; but that does not arise from any difference in principle, but simply because the inconsistency is found in releases more frequently than in other deeds."-Jenner v. Jenner (1866), L. R. 1 Eq. 361, at pp. 364, 365; 35 L. J. Ch. 329, Sir W. Page Wood, V.-C.

"Another thing which I think we may consider settled by authority is, that where the words of a covenant are ambiguous and difficult to deal with, we may resort to the recitals to see whether they throw any light on its meaning."-In re Michell's Trusts (1878), 9 Ch. D. 5, at p. 9, Jessel, M. R.

"The rule is, that a recital does not control the operative part of a deed, where the operative part is clear."-Dawes v. Tredwell (1881), 18 Ch. D. 354, at p. 358, Jessel, M. R.

"The true rule is given in the language of Lord Hatherley in Rooke v. Lord Kensington [(1856), 2 K. & J. 753, at p. 769; 25 L. J. Ch. 795, at p. 799], that you cannot control clear words of conveyance by words of recital,' but he goes on to point out that 'the exception will be found to be always, that general words are not within that description of clear words of conveyance which cannot be controlled by the recital.' And in Jenner v. Jenner [(1866), L. R. 1 Eq. 361; 35 L. J. Ch. 329], where the authorities are collected and examined, the same learned judge acted upon that principle, relying upon Lord Ellenborough's words in Payler v. Homersham [(1815), 4 M. & S. 423, at p. 426], the general words of a release may be restrained by the particular recital. Common sense requires that it should be so, and in order to construe any instrument truly, you must have regard to all its parts, and most especially to the particular words of it.'"-Danby v. Coutts & Co. (1885), 29 Ch. D. 500, at p. 514; 54 L. J. Ch. 577, at p. 579, Kay, J.'

6

"From that case [Moore v. Magrath (1774), 1 Cowp. 9] I get

in addition the leading principle laid down, that the recitals are the key to what is intended to be done by the deed, and that though general words may be put in to guard against an accidental omission, yet in the absence of any indication of a larger meaning, the deed must be held to refer to estates or things of the same nature or description with those which have been already mentioned."-Crompton v. Jarratt (1885), 30 Ch. D. 298, at p. 307; 54 L. J. Ch. 1109, at p. 1115, North, J.

"Although it is true, as Mr. Wolstenholme said, that words of general description like these are introduced in order to carry into the assurance anything which by mistake has been omitted, yet in my opinion the things to be swept in must, primâ facie, be of the same class and nature as those which have been specifically enumerated." -Ibid., at p. 316; L. J. at p. 1119, Cotton, L. J.

"Now there are three rules applicable to the construction of such an instrument (an assignment).

"If the recitals are clear and the operative part is ambiguous, the recitals govern the construction.

"If the recitals are ambiguous, and the operative part is clear, the operative part must prevail.

"If both the recitals and the operative part are clear, but they are inconsistent with each other, the operative part is to be preferred."-Ex parte Dawes (1886), 17 Q. B. D. 275, at p. 286, Lord Esher, M. R.

Ibid., at p. 289, Lopes, L. J., stated same rules in a slightly different way.

"I take it to be a settled principle of law that the operative words of a deed which are expressed in clear and unambiguous language are not to be controlled, cut down, or qualified by a recital or narrative of intention.”—Mackenzie v. Duke of Devonshire, [1896] A. C. 400, at p. 408, Lord Davey.

Covenants.

Definition of a Covenant.

A covenant is a clause of agreement contained in a deed (whether by recital, provision, or exception), whereby either party stipulates for the truth of certain facts, or binds himself to perform, or forbear doing, something or other.

"A covenant is the agreement or consent of two or more by deed